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«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»

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1.55 Section 80 has two important consequences for persons charged with a federal offence. First, every trial for an indictable offence must be conducted before a jury— whereas state and territory law often provides for the waiver of a jury trial in certain circumstances, with the trial proceeding before a judge alone. Secondly, as interpreted by the High Court, s 80 requires that the jury reach a unanimous verdict35 in a federal criminal trial—whereas some states and territories allow for a majority verdict in certain circumstances.36 32 See Criminal Code s 80.2(2), (4), (6).

33 Such as in the case of a young child (s 7.1); a person suffering from a serious mental impairment (s 7.3);

or where a person is acting in self-defence (s 10.4), under duress (s 10.2), in response to a sudden and extraordinary emergency (s 10.3), under a claim of right to property (s 9.5) or is exercising lawful authority (s 10.5).

34 See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, ALRC 103 (2006), [1.51]–[1.63].

35 Cheatle v The Queen (1993) 177 CLR 541, 551–552.

36 Black v The Queen (1993) 179 CLR 44.

1. Introduction to the Inquiry 41

1.56 The discretion about whether to prosecute serious criminal charges is exercised by the Commonwealth Director of Public Prosecutions (CDPP). The CDPP is a statutory officeholder, with a very high degree of independence afforded to that office by statute37 and by legal culture and tradition. In the normal course of things, the investigating authority (such as the Australian Federal Police or a federal regulator) will provide the CDPP with a brief of evidence, upon which the CDPP will determine—according to its published guidelines38—whether there is sufficient probative evidence to proceed, and whether launching a prosecution would be in the public interest.

1.57 Although the law provides that the Attorney-General may, after proper consultation, issue a guideline or direction to the CDPP—which must be tabled in Parliament and published in the Gazette39—this has not happened to date in relation to a specific criminal proceeding.40

1.58 Finally, the CDPP has the power to take over any criminal proceeding (summary or indictable) instituted by another person, and then ‘may decline to carry it on further’.41 Thus, there is very little risk in practice of a private prosecution for treason or sedition. If the allegations have substance, the CDPP would take over and proceed;

if the action is without foundation, is contrary to the public interest, or was instituted to harass or intimidate an accused, then the CDPP could be expected to take over and promptly terminate the proceedings.

Law reform processes Timeframe

1.59 Most ALRC inquiries take one or more years to complete. In this Inquiry, the ALRC was asked to report within three months. This presents some obvious challenges for the ALRC—mainly in terms of ensuring adequate time for consultation with stakeholders and for conducting the necessary research and writing in-house.

1.60 Notwithstanding the tight timeframe, the ALRC determined to adopt its standard processes, which have been developed over time and build in mechanisms to encourage widespread community engagement with the law reform process and allow for the careful development of public policy. This normally involves the production of two community consultation documents (an Issues Paper and a Discussion Paper) before proceeding to a final Report with recommendations for reform.

37 Director of Public Prosecutions Act 1983 (Cth).

38 Commonwealth Director of Public Prosecutions, The Prosecution Policy of the Commonwealth www.cdpp.gov.au/Prosecutions/Policy/Default.aspx at 11 March 2006.

39 Director of Public Prosecutions Act 1983 (Cth) s 8.

40 Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.

41 Director of Public Prosecutions Act 1983 (Cth) s 9(5).

42 Fighting Words

1.61 The ALRC respects the Australian Government’s expressed desire for prompt advice on the effectiveness or otherwise of the current sedition laws, and has endeavoured to move as quickly as possible. The issues in question here, although difficult and important, are narrower than is the case with most ALRC inquiries.

Further, the ALRC has had the benefit of the report of the 2005 Senate Committee inquiry—and the nearly 300 submissions made to that inquiry—which has reduced the typical learning curve.

1.62 To accommodate the need for widespread and meaningful community consultation on a matter of great public interest, the ALRC produced the Discussion Paper after three months.42 Allowing appropriate time for written submissions and other feedback to be considered meant that this Report was completed in late July

2006. Despite the relatively abbreviated reporting timeframe, the ALRC is confident that there has been adequate opportunity for community input into the law reform process and that a broad range of voices has been heard and considered.

Matters outside this Inquiry

1.63 The scope of the ALRC’s Inquiry was limited both by its formal Terms of Reference and by the practical necessity of demarcating a work program that was coherent and achievable in the limited time available.

1.64 The ALRC did not examine a range of issues that arose in discussions about the contemporary legislative and policy response to matters of national and international security. For the avoidance of doubt, issues not included within the current Terms of

Reference include:

• the recent increases in the powers of ASIO and other intelligence and law enforcement authorities to detain suspects and others for questioning in connection with the planning or execution of terrorist activity;

• the powers of intelligence and law enforcement authorities to conduct electronic surveillance or interception, with appropriate approval;

• the new powers to make preventative detention and control orders;

• the handling of classified and security sensitive information by Australian courts and tribunals;43 and

• the use of executive authority to refuse, withdraw or cancel passports or visas, based upon security concerns.

42 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006).

43 This area was covered in Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004), which the Australian Government has substantially implemented.

1. Introduction to the Inquiry 43

Advisory Committee

1.65 It is standard operating procedure for the ALRC to establish a broad-based Advisory Committee to assist with the development of its inquiries.

1.66 Advisory Committees advise and assist the ALRC, and have particular value in helping the ALRC identify the key issues and determine priorities, providing quality assurance in the research, writing and consultation effort, and assisting with the development of proposals and recommendations for reform as the inquiry progresses.

However, ultimate responsibility for this Report and its recommendations remains with the Commissioners of the ALRC.

1.67 The membership of the Advisory Committee for this Inquiry was drawn from the bench, the bar, the academy, media organisations, civil liberties groups and human rights and equal opportunity commissioners, and includes a current and former Commonwealth Director of Public Prosecutions. The full membership is detailed in the List of Participants at the front of this publication.

1.68 The Advisory Committee had its first meeting on 11 May 2006, to consider the draft proposals leading up to publication of the Discussion Paper, Review of Sedition Laws (DP 71). A second and final meeting was held on 11 July 2006 to consider draft recommendations for reform to be contained in this Report.

Consultation papers

1.69 Issues Paper 30, Review of Sedition Laws (IP 30), was released on 20 March 2006 to commence the community consultation process on an informed basis. IP 30 set out 24 key questions that the ALRC identified as arising out of the Terms of Reference.

Following further research and consultation, DP 71 was released on 29 May 2006 and contained 25 proposals for reform.

1.70 IP 30 and DP 71 contained a significant amount of background and historical material, and outlined the current state of the federal law on sedition and unlawful associations following the amendments in late 2005, as well as related federal laws and relevant state and territory legislation. The consultation papers surveyed the relevant international law in this area, including United Nations conventions, declarations and resolutions, and also provided some comparative analysis of relevant laws in a number of other countries—especially common law countries with similar systems and traditions, and the European Union, which has developed jurisprudence in this field.

Community consultation

1.71 The Terms of Reference asked the ALRC to ‘identify and consult with relevant stakeholders’. Under the provisions of the Australian Law Reform Commission Act 44 Fighting Words 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.44

1.72 One of the most important features of ALRC inquiries is the commitment to widespread community consultation.45 The nature and extent of this engagement normally will be determined by the subject matter of the reference—particularly whether the topic is regarded as a technical one, of interest largely to specialists in the field, or is a matter of interest and concern to the broader community. The ALRC regarded this particular inquiry as clearly falling in the latter category.

1.73 The ALRC developed a broad consultation strategy for this Inquiry, so far as time permitted, which encouraged participation from a wide spectrum of stakeholders, including: community groups; prosecution and law enforcement agencies; criminal defence lawyers; judges; government lawyers and officials; media organisations and peak associations; legal professional associations; human rights and civil liberties groups; academics; and others.

1.74 The ALRC received 126 written submissions46 and conducted 27 consultation meetings (many of them multi-party). Lists of the submissions and consultations are set out in Appendices 3 and 4 of this Report, respectively.


1.75 Upon completion, the ALRC’s final Report and recommendations will be presented to the Attorney-General for tabling in the Australian Parliament, at which point the report becomes a public document.47

1.76 ALRC reports are not self-executing documents. The ALRC is an advisory body and provides recommendations about the best way to proceed—but implementation is always a matter for others.48

1.77 In recent times, the ALRC’s approach to law reform has involved a mix of strategies including: legislation and subordinate regulations, official standards and codes of practice, industry and professional guidelines, education and training programs, and so on. Although the final Report is presented to the Attorney-General, it 44 Australian Law Reform Commission Act 1996 (Cth) s 38.

45 B Opeskin, ‘Engaging the Public: Community Participation in the Genetic Information Inquiry’ (2002) 80 Reform 53; I Davis, ‘Targeted Consultations’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2006), Ch 10; R Atkinson, ‘Law Reform and Community Participation’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2006), Ch 11.

46 In addition, the ALRC considered nearly 300 submissions made to the 2005 Senate Committee inquiry. The printed version of this document incorrectly states that 128 written submissions were received.

47 The Attorney-General must table the Report within 15 sitting days of receiving it: Australian Law Reform Commission Act 1996 (Cth) s 23.

48 The ALRC has a strong record of having its advice followed. About 59 per cent of the ALRC’s previous reports have been substantially implemented; 27 per cent have been partially implemented; three per cent are currently under consideration; and 11 per cent have not been implemented: Australian Law Reform Commission, Annual Report 2004–05, ALRC 101 (2005), 24.

1. Introduction to the Inquiry 45

may be that some recommendations will be directed to other government and nongovernment agencies, associations and institutions for action or consideration.

Organisation of this Report

1.78 This Report is organised into 13 chapters—although recommendations are not spread evenly throughout. Some chapters provide mainly contextual material, while others are focused on the ‘nuts and bolts’ of the law.

1.79 In order to clarify the current and proposed state of the law, Appendix 1 sets out the existing provisions in Division 80 of the Criminal Code on treason and sedition.

Appendix 2 shows how those provisions will look if the Australian Government adopts the ALRC’s recommendations for reform. As noted above, Appendices 3 and 4 document the public consultation effort, including meetings and written submissions.

Appendix 5 provides a list of the common abbreviations used in this Report.

1.80 Chapter 2 provides a history of the law of sedition and related offences, as it evolved from its early origins in England many centuries ago, through to its inclusion in the Crimes Act in 1920, and then to more modern formulations and variations. In view of its problematic history, the chapter recommends the abolition of the term ‘sedition’ from the federal statute book.

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